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The Honorable John Bridges

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTONIN AND FOR THE COUNTY OF CHELAN

Timothy Borders, et aI.

King County and Dean Logan, its Director of Records, Elections and Licensing Services, et aI.

, )

Intervenor-Respondent

Intervenor-Respondents. )

PETITIONERS' OPPOSITION TOWSDCC' S MOTION TO STRIKE

Petitioners No. 05- 00027-

Respondents.

Washington State Democratic CentralCommittee

Libertarian Party of Washington State et aI.

INTRODUCTION

Intervenor Washington State Democratic Central Committee ("Democratic Party

asks this court to strike relief from the Petition. The motion glosses over the fact that

Petitioners have requested (1) relief explicitly provided for by the election contest

setting aside the results of the election and nullifying the Certificate of Election - and (2)

relief previously approved by the Washington Supreme Court

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Davis Wright Tremaine LLP

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election where , because of the neglect of elections officials, it was impossible to determine

who received the most valid votes.

Moreover, even if the Democratic Party is right that a re-vote or new election

cannot be conducted immediately (and they are not), this court still has the power to set

aside the election results and nullify the certificate of election, and thus the only debatable

question is when a new election or new vote will take place. As explained below

Petitioners contend that under the contest statute, this court' s plenary authority, and

Supreme Court precedent, this court has the authority to order are-vote

2004 general election immediately. In any event at the latest, if the court sets aside the

election results, there will be a new election in November 2005 by operation of Article III

section 10 of the Washington Constitution. For all these reasons , the motion to strike

Petitioners ' request for relief should be denied.

II. ARGUMENT

The Democratic Party s motion suggests that the only relief sought by Petitioners is

an order for a new election. This is misleading. While it is true that

vote or a new election as soon as permitted by law, there is no question that Petitioners

have also asked to have the tainted initial results of the November 2004 gubernatorial

election set aside and the Certificate of Election nullified. All

arguments go to the propriety of the additional relief of a re-vote or a new election, and

those arguments lack merit, as explained in detail below.

The Motion to Strike is Improper and Premature.

The Democratic Party takes the unusual step of filing a stand-alone motion to

strike, or in the alternative dismiss, Petitioners ' prayer that seeks an order directing that a

new election be conducted "as soon as practicable." Civil Rule 12(f) provides

redundant, immaterial , impertinent, or scandalous matter" from the petition. Courts

hesitate" to grant motions to strike pleadings, Moore s Federal Practice, Vol. 1 , p. 660.

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The Democratic Party does not show the words "as soon as practicable" in the Petition are

redundant, immaterial , impertinent, or scandalous.

Any substantive attack on the merits of the Petition and the availability of the relief

sought must go forward under the strict requirements of Civil Rule 12(b)(

standard, the question before the court is "whether it can be said that there is no state of

facts which plaintiff could prove entitling him to relief under his claim. See Grimsby

Samson 85 Wn.2d 52 530 P.2d 291 , 293 (1975). The factual allegations in the

petition must be accepted as true for the purpose Hofto v. Blumer

Wn.2d 321 , 444 P.2d 657 (1968). As discussed in detail in Petitioners Opposition to

Motion to Dismiss Causes of Election Contest, the Petition states facts sufficient to state a

claim for relief in an election contest, including setting aside the initial results of the

election, nullifying the certificate of election, and ordering a re-vote or a new election to

determine who will be governor.

The Petition Also Seeks Relief Expressly Provided for by the ContestStatutes.

As the Democratic Party concedes (albeit in a footnote, Motion at 2 n.2), the

Petitioners ' prayer for relief seeks , among other things , to annul the election and void the

certificate of election. Petition Section VII (Relief

election contest statute expressly provides for these remedies. See RCW 29A.68.050

annulling and setting aside such election ); RCW 29A.68. 120 ("the certificate issued

shall be thereby rendered void"). Thus, there can be no serious dispute that the court can

set aside the initial results of the election, and nullify the certificate of election. As

explained below, there is also no question that, if the election results are set aside, there

will be a re-vote or a new election to follow. The only question is when it is possible to

conduct a re-vote or hold a new election. The Democratic Party s disagreement as to the

appropriate timing does not mean that some of Petitioner s requested relief for a new

election "as soon as practicable" should be stricken.



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The Court has the Power to Order a Re- Errors and Neglect in

The Court has Authority to Order Elections Officials toConduct a Re-

RCW 29A.68.011 explicitly grants this court the power to "require any person

charged with error, wrongful act, or neglect to forthwith correct the error, desist form the

wrongful act, or perform the duty and to do as the court orders. (Emphasis added.) The

plain language ofRCW 29A.68.011 confers broad power upon courts to remedy election

errors and neglect. The pleadings allege that as a result of

part of the defendants, large numbers of illegal votes were cast in the November 2004

gubernatorial election. If the allegations of widespread

margin of victory, are true, the only way to correct the illegal dilution of votes cast by legal

voters is to direct the election officials to carry out their duty, and re-vote the election.

In 1975 , the Supreme Court confirmed that a superior court has the power to order

a new election when, due to neglect by elections officials , it was impossible to determine

who received the most valid votes. See Foulkes v. Hays 85 Wn.2d 724 (1975). In that

case, the Court expressly held that the earlier codification ofRCW 29A.68.0111 conferred

on a superior court the power to order a new election where no other remedy would

adequately correct distortions in election results caused by fraud or neglect" and that this

authority also flows from the court' s equitable powers. Id. (emphasis added). The

Supreme Court further held that a superior court' s authority, whether based on the

specific statute or the general equity jurisdiction " carries with it "all the means to carry it

into effect." Id. at 623-33. In holding that a trial court

I RCW 29A.68.011 was previously codified as RCW 29.04.030. The present version isalmost identical to the previous version, with the addition ofRCW 29A.68.011(6), whichextends judicial power to situations where "(aJn error or omission has occurred or is aboutto occur in the issuance of a certificate of election." Curiously, the seems to argue that through this expansion of judicial power, the legislature somehowacted to limit the power to order a re-vote that was explicitly recognized in Foulkes. See

Motion at



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RCW 29.04.030 (the predecessor of29A.68.011) to order new elections under

circumstances outside those governed by RCW 29.65.010 (the predecessor of 29A.68.020),

the court noted that "where the remedy provided in an election contest statute does not

apply to a particular challenge and is not made exclusive, we have held that the power of a

court to entertain that action under another head of its jurisdiction is unaffected. Id.

citing State ex reI. Hyland v. Peter 21 Wash 243 57 P. 814 (1899). The holding of

Foulkes is on point and dispositive of the question of scope of this court' s authority in this

case.

The Democratic Party cites Becker v. Pierce County, 126 Wn.2d 11 , 18 (1995) as

the sole case supporting their contention that this court lacks the authority to order a re-

vote. See Motion at 11. This is a misreading of the Becker

candidate for the state auditor position, who lost in the primary, filed the case over a year

after the general election, claiming that her opponent in the primary should have recused

himself from the canvassing board in Pierce County. Id. at 14. In an effort to overcome

the statutory deadlines for submitting affidavits as prescribed by RCW 29.04.030(3) and

(6), she argued that her lawsuit was being brought solely under RCW 29.04.030(4), which

contained no such deadline. Id. at 20. She s dismissal , and the

Supreme Court affirmed, holding (l) that the county auditor was not required by RCW

29.62.030 to recuse himself from the canvassing board for purposes of certifying the state

auditor election and (2) that Article I , sections 1 , 19, and 32 of the Constitution did not

create independent grounds to contest the nomination and election of county auditor. The

Court although acknowledging that its consideration of the question was unnecessary to

the resolution of the case see Becker 126 Wn.2d at 19, nonetheless addressed the

timeliness issue , deciding that the action was barred by the statute of limitations in the

contest statute. Id. at 17-21. In doing so , the Court observed in two sentences the relief

Becker sought:



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The relief sought bv Becker is the same as would result froma successful election contest: the setting aside of the election.

. . .

rIlf Becker were limitinz her claim for relief to thatprovided bv RCW 29. 04. 030(4) alone. invalidation of theelection. the relief she seeks, is not a possible result. Underthat statute. the only relief that a court may afford is to orderthat the offending person "forthwith correct the error. desistfrom the wrongful act. or perform the r do as the court orders." We Becker s action is an election contest. and as such. is subjectto the time limitations set forth in RCW 29.04.030 (nowRCW 29A.68.011).

Becker, supra 126 Wn.2d at 20-21 (emphasis added). The Democratic Party asserts that

the italicized phrase is a holding that no provision ofRCW 29A.68.011 permits a court to

set aside an election under any circumstances. The Becker dictum cannot be read so

broadly.

Foulkes expressly held in 1975 that courts have the general equitable power, as

well as explicit statutory authority under the predecessors to RCW 29A.68.011 and .020 , to

set aside an election and to order a re-vote in appropriate circumstances. Contrary to the

Democratic Party s assertions , the Becker court did not overrule this central holding in

Foulkes. While Becker contains dicta that invalidation of the election of state auditor by

the loser of the primary, based solely on RCW 29.04.030(4) (predecessor to RCW

29A.68.011), is "not a possible result id. at 20- , the court did not even mention Foulkes

and did not perform any analysis of the grant of power contained in RCW 29.04.030 in

reaching this conclusion. Becker cannot be read as repudiating the central holding of

Foulkes absent some indication that the Supreme Court determined that the Foulkes rule

was "incorrect and harmful." See Riehl v. Foodmaker, Inc. 152 Wn.2d 138 , 147 94 P.

930 935 (2004), citing In re Rights to Waters of Stranger Creek 77 Wn.2d 649 , 653 , 466

P .2d 508 (1970).

Absent clear direction from the Supreme Court that it intended to overrule Foulkes

this court is bound to follow the rule established in Foulkes. E.g. , Rodriguez de Quijas

Shearson/American Express 490 U.S. 477 , 484 (1989) (if a precedent has direct



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application in a case, yet appears to rest of reasons rejected in other decisions , lower courts

should follow the case that controls directly, leaving it to the Supreme Court to decide

whether to overrule its own decisions); Agostini v. Felton 521 U. S. 203 , 237-38 (1997)

(same).

A Re-Vote is Merely a Continuation of the November 2004General Election, Not a Separate or Special Election.

The Democratic Party also argues that other statutes and provisions of the

Constitution, when knitted together as they propose, prohibit this court from ordering a

special election. However, the statutory and constitutional pr04ibitions posited by the

Democratic Party simply do not apply to prevent a re-vote in the gubernatorial race in the

November 2004 election. What petitioners seek is not a special election, but simply a new

vote in the tainted and still incomplete November 2004 election. The issuance of the

certificate of election does not represent the end of that process--any more than the

conclusion of the first machine count of the ballots--as the contest statute confirms by

allowing a contest action to be filed as late as 10 days after the issuance of the certificate.

RCW 29A.68. 011; see also 26 Am. Jur. 2d 370 ("A certificate of election is not a title to a

public office, but a mere muniment of title. It is only prima facie evidence of the office

holder s right to the office" but only until "the true result of the election is determined in

the manner provided by law. ) Nothing in , or the cases

interpreting it, preclude such a common-sense remedy, and cases in analogous situations

from other jurisdictions confirm that courts may order a re-vote or new election as part of

the original election without running afoul of statutory or constitutional limits that would

otherwise preclude a special election conducted on the same day. See Public Citizen

Zell Miller 813 F. Supp. 821 (N.D. Ga. 1993) (candidate challenged run-off election as

violating federal law that required senate elections to be conducted exclusively on

November 3; court held that the subsequent run off election "does not reschedule the

earlier general election" because the initial result of the general election on November 3



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was a " failure to elect"

);

c.j, Castillo v. State of Texas ex reI. Saenz 404 S.W.2d 97 , 98-

99 (Tex. Civ. App. 1966) (because it was impossible to complete the necessary steps for an

election by the time prescribed in the statute, it was permissible to hold it later; "We cannot

infer that the Legislature intended, if it was impossible to hold a legal election on April 6

1965 , then, in that event, the election should never be held.

To agree with the Democratic Party s narrow view ofthis court' s authority would

be to find the court impotent to order a sensible remedy in the face of serious violations of

law and duty by elections officials that have resulted in the dilution of lawful votes, the

counting of illegal votes, and an election so tainted by error and neglect that is impossible

to determine which candidate received the most legal votes. This cannot be the law.

well established that the courts of the State of Washington have broad, inherent equitable

powers regardless of the statute in question. See Blanchard v. Golden Age Brewing Co.

188 Wash. 396 405-06 (1936). It is also true that "election statutes are considered

remedial and should be liberally construed Gold Bar Citizens for

Whalen 99 Wn.2d 724 665 P. 2d 393 (1983), citing Columbia River Salmon Tuna

Packers Ass v. Appling, 375 P.2d 71 (Or. 1962). Given these two principles , it cannot be

the case that this court is powerless to remedy the injustices that have taken place, and as

noted Foulkes confirms that this court has the necessary authority. Foulkes 85 Wn.2d at

633 (court has "all the means to carry its authority to hear election contests into effect" and

ordering a new election where that was necessary in light of its inability to determine who

really won).

The Democratic Party cannot seriously argue that if, due to the neglect of elections

officials, all the ballots in King County were lost or destroyed before they could be

counted in a particular election, that a court would have no power to remedy the situation

by ordering an immediate re-vote as part of that election. Likewise, the Democratic Party

cannot seriously argue that the constitutional provisions and statutes governing vacancies



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and special elections would preclude such a remedy, and that a court would be powerless

in the face of such egregious injustice.

Even if the Democratic Party is Right, the Only Consequence is a Delayin the Conduct of a New Election Until November

As outlined above , the court has the necessary statutory and equitable authority to

order elections officials to conduct a re-vote as part of the November 2004 general election

and that it be conducted as soon as possible. However, even if the Democratic Party is

right that setting aside the election results and nullifying the Certificate of Election, as

requested by the Petitioners , results in a vacancy in the Office of Governor (see Motion at

6), the only consequence is that, by operation of Article III, section 10 of the Constitution

the Lieutenant Governor would fill the office until a new election is conducted at the next

general election in November 2005. The Democratic Party s contention that the

Constitution and the election statutes prevent a new election until 2008 ignores the plain

language of the constitution, and would require amending the constitution to give effect to

the relevant constitutional provisions.

The Constitution Allows a November

Constitution Article III, section 10, on which the Democratic Party relies , expressly

provides for a new election to replace the lieutenant governor at the "next general

election

Any person succeeding to the office of governor as in thissection provided, shall perform the duties of such office onlyuntil the disability be removed, or a governor be elected andqualified; and if a vacancy occur more than thirty daysbefore the next general election occurring within two yearsafter the commencement of the term, a person shall beelected as such election to fill the office of governor for theremainder of the unexpired term.

Const. art. III , 9 10 (emphasis added). Because the vacancy would occur more than 30 days

before the next general election within two years of the beginning of the term, there would



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be a new election for governor in that "next general election " which the Democratic Party

acknowledges will be in November 2005. See Motion at 5.

A similar procedure controls when Supreme Court Justice positions become vacant.

Article IV , section 3 is similar to Article III, section 10 , in that it requires that Supreme

Court Justices be elected "at the general state election at the times and places at which state

officers are elected" and states that vacancies shall be filled at the next succeeding general

election to fulfill the remainder of the term. There have, of course, been several odd-year

Supreme Court elections, most recently for Justice Sanders in 1995 after Justice Pekelis

had been appointed to fill the position vacated by Justice Guy, for Justice Derham in 1985

Justice Dimmick in 1981 , and Justice Brachtenback in 1973.

Citing Fish v. Howell 59 Wash. 492 498 (1910), the Democratic Party argues

however, that any election held prior to the end of the four year term constitutes a "special

election" in violation of mandate of Article III, section 10 to fill the vacancy during a

general election." Motion at s reliance on Fish to interpret

Article III , section 10 , is badly misplaced. That case was decided prior to amendments to

Article III that now provide for a the election of a new governor at the "next general

election 2 and analyzes a question about a Secretary of State election without making any

reference to Article III, section 10. Indeed, in a subsequent case the Washington Supreme

Court, analyzing Article XI, section 6, which parallels Article III, section 10 , refused to

follow the reasoning in Fish. DeBow v. McNeil 127 Wash. 157 (1923) (vacancy holder

not entitled to hold position for the remainder of the four-year term). Holding that

constitutional provisions like Article III, section 10 provide the "machinery for the election

2 The original text of Article III, section 10 was limited to the first sentence of the currentArticle III, section 10, and provided only that the duties of the Governor fall upon the Lt.Governor in the event of a vacancy in that office. See, e. , State v. McBride 29 Wash.335 , 70 P. 25 (1902) (holding under this version of the constitution that when a Governordied in office, the Lieutenant Governor filled the duties of Governor for the remainder ofthe full four-year term).



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of officers to fill unexpired terms of office " the Supreme Court rejected the argument that

filling the vacancy during a general election (held during the pendency of four-year term)

would constitute a "special election. Id. at 162-63.

The Democratic Party s interpretation of Article III, section 10 as prohibiting an

election prior to the completion of the four-year term in 2008 , directly contradicts the plain

language of that very provision which plainly states that a person "shall be elected" to fill

the office of governor for the "remainder of the unexpired term.

Further, as the Democratic Party s own authority establishes, provisions ofRCW

29A regarding elections cannot prevent a November 2005 election to fill the vacancy in the

governor s office, because provisions in the election code are subordinate to the

constitutional provisions. Motion at 7 (collecting cases).

The Democratic Party' s Constitutional Interpretation RequiresAmending the Constitution.

The Democratic Party cannot reconcile the express requirement of Article III

section 10 to hold elections to fill the office for the "remainder of the unexpired term" with

its proffered interpretation of other constitutional provisions addressing the election of the

governor. For example, Article III, section at the

3 Past experience also suggests that, if the court simply sets aside the election results(without question a remedy available under the statute), the Legislature will pass whateverlaws are necessary to satisfy constitutional requirements and provide for a new electionpromptly. For example , after the death of the Secretary of State, the Legislature went intospecial session amending what is now RCW 29A.04.321 to fill the vacancy at the 1975general election. See Daly v. Chapman 85 Wn.2d 780 (1975). Similarly, in 1983 , afterSenator Scoop Jackson died, the Governor called for a special election to fill the vacancy,in accordance with RCW 29.13.020 (now RCW 29A.04.321). Because there was notenough time to hold a regular registration period and primary for the seat, the legislatureconvened on September 10 , 1983 , passed legislation that allowed the primary and generalelection, and was adjourned. The Governor signed the bill that same day. Laws Washington 1983 , 3d. Ex. Session, Ch. 1. And more recently when, in February 2004, theSupreme Court refused to hear an appeal of the Ninth Circuit's finding that Washingtonblanket primary was unconstitutional , the Legislature passed Engrossed Senate Bill 6453as an emergency measure, establishing a new primary system and implementing it in timefor the September primary.

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same time and place of voting as for members of the legislature." The Democratic Party

insists that holding mid-term elections to fill a vacancy (as expressly provided by Article

III , section 10), would require "amending the Constitution (specifically, Article III, section

1) to allow election of the governor "separately" from the "other Article III , section

officers" Motion at , however, disfavor interpretations that require amendment

of the constitution. Northshore School District No. 417 v. Kinnear 84 Wn.2d 685 , 715

(1975) (court' s function is to "harmonize wherever possible any seeming conflicting

provisions so that the whole constitution is left intact"

),

overruled on other grounds

Seattle School Dist. No. v. State 90 Wn.2d 476 (1978).

This is especially so where, as here, it completely unnecessary, and the more

reasonable interpretation harmonizes all the relevant provisions. , elections to fill

vacancies in the Office of Governor can take place consistent with the Constitution as

written, just as they have taken place many times to fill vacancies in Supreme Court

positions under very similar language in Article IV , section 3. Article III , section 1 already

provides for elections "severally" of executive officer at the "same time" as members of

the legislature. Simply by holding elections in November, a vacancy in the governor

office can be filled "severally" at the "same time" as is authorized for the election of

legislators by Article II , section 15 and RCW 29A.04.321 (c). , nor

any legal authority cited by the Democratic Party, requires conducting an election of all

executive officers to fill the vacancy of a single officer. The Court should reject the

Democratic Party s unsupported interpretation of Article III, section

constitutional amendment" to harmonize it with Article III, section 10 that provides a

mechanism for filling of vacancies in the governor s office for the "remainder of the

unexpired term.

The Democratic Party argues that under Article III, section 1 , even with a

constitutional amendment, a new election "could not take place until November 2006.



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Motion at 5. Presumably the

Article III , section same time" as voting for

members of the legislature. See Motion at 5 ("the next general election at which legislators

will stand for election is November 2006. ). However, both the Washington Constitution

Article II, section 15 , and Washington election statutes, RCW 29A.04.321 (c), provide for

the election oflegislators on odd years, including November 2005.

The Democratic Party also claims the omission of the office of Governor from

RCW 29A.04.321(c) as having the effect of prohibiting an election to fill a vacancy in the

office of Governor in an odd-numbered year. That reading of the statute is a red herring

and cannot be sustained. In Fish the Supreme Court held that absent Legislative action, a

constitutional officer appointed by the Governor to fill a vacancy under Article 3 section

13 would serve the remainder of the unexpired term.

29A.04.321(c) was enacted so that an election would be held to fill any unexpired term for

those offices. There was obviously no reason

to) add the Governor to the list of offices covered by this section because election for that

office was already constitutionally mandated by Article 3 section 10 as amended. The

Democratic Party s interpretation ofRCW 29A.04.321 would directly conflict with Article

, section 10 of the constitution and would lead to the absurd conclusion that the

Legislature intended that a vacancy in any elective office in the state -- whether statewide

local , or federal -- except the office of governor should be filled by the voters at the next

general election.

If setting aside the election results and nullifying the Certificate of Election results

in a vacancy that must be filled through a new election, as the Democratic Party argues

holding a November 2005 election would be consistent with and give full effect to other

constitutional provisions identified by the Democratic Party: It would fill the vacancy in

the next general election (Article III , section 10) on a date for legislative elections in



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November (Article II, section 5); the term could commence in January (Article III, section

4) and extend through the remainder of the unexpired term (Article III, section 2). This

construction of the relevant provisions gives full effect to each of these sections of the

Constitution in such a way that the "whole constitution is left intact." See Northshore

Wn.2d at 715.

In any case, the fact that the Constitution might be construed to require that any

new election be held in November 2005 is, of course, is no reason to strike the request for

a new election "as soon as practicable.

III. CONCLUSION

There is no basis for striking from the Petition the statement of relief requested by

Petitioners. Petitioners have

contest statutes and relief that has been expressly approved by the Supreme Court: setting

aside the election results and ordering a re-vote as soon as possible.

Democratic Party is right that setting aside the election results will trigger a vacancy in the

office of Governor, the latest a new election would be conducted, pursuant to the

Constitution, is November 2005. Because the relief sought is provided for by statute and

controlling precedent, and because the only disputed question is when a new vote or

election may be conducted, the motion to strike the requested relief must be denied.

'I A'"DATED this day of January 2005.

Davis Wright Tremaine LLPAttorneys for Petitioners

By

--\=--

Harry J. F. Korrell WSBA #23173Robert A. Maguire, WSBA #29909

---'



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Documents

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